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Saturday, March 31, 2012

Estate Planning, put simply, is the process of arranging one's affairs for when they pass away. This can usually be accomplished through the use of living trusts and wills. To most, the concept of estate planning sounds relatively straightforward. You probably feel that you should dictate how and to whom your assets are distributed after you pass away, with little concern for any other issues that may arise.

The reality of estate planning, however, is not always so simple. There are a number of factors to consider when preparing an estate plan, including, but by no means limited to, the following:

oThe value and types of your assets

oYour current and future income

oYour distribution desires

oYour mental and physical condition

oOther objectives, such as leaving a legacy, providing for a charity, taking care of your children or grand-children, or proving for someone with special needs

The most common estate planning instruments are wills and living trusts. There is a common misconception about the need to have a living trust. Many assume that they only need a simple will to best take care of their affairs when they pass away, and that only the wealthy need to have a trust. While this may be true in some instances, it often also leads to unexpected results.

Wills

A will is a document that lists how you would like your estate and affairs handled upon your death. The process by which this is accomplished is called probate, which is when a will is submitted to a court for administration after your death. The executor of the will, usually a person named in the will, is responsible for managing the affairs of the estate as it progresses through probate. The court will oversee your estate, payment of your outstanding obligations, and distribution of your assets according to the terms of your will. This process typically takes a number of months at a minimum to complete, usually involves your executor having to hire an attorney to handle the entire process, and is quite expensive for the estate. Further, since your will is submitted to the court, it becomes a public record for the entire world to see, which is problematic for those who desire a sense of privacy over their financial affairs.

Living Trusts

A living trust is also a document that details how you would like your estate and affairs handled after your death. However, unlike a will, a living trust does not require your heirs to submit to the probate process. The trustee of the trust, usually the person or company identified in the trust to handle the affairs of the trust, is responsible for managing the trust estate until the trust terminates pursuant to the terms of the trust. The terms of the living trust usually describe how one's assets are to be distributed. Further, this distribution can occur over many years if you so desire, thereby allowing you to retain a measure of control over your assets even after your death. You may also be able to place other restrictions over your assets, which can help to protect the assets from the creditors of your heirs or to ensure that your goals and objectives are met. Moreover, since your living trust is not submitted to a court, the terms of your living trust are kept out of the public domain.

Which Do You Need?

The determination of whether to choose a living trust or a will depends on a number of factors. In general the main factor to consider is the value of an estate. For persons who do not own any real property and have an estate worth less than $20,000.00, the entanglement of the probate process is minimal. In such a scenario, only an Affidavit of Entitlement is needed to transfer assets. For people in this category, it is usually recommended to have a simple will.For those who own real property or have an estate worth more than $20,000.00, probate can get more complicated and costly. In these situations, it is usually advantageous to have a living trust. While it is usually less expensive to prepare a will than it is to create a living trust, this minimal savings is more than offset by the expense and burden of probate. However, as with most things that deal with your legal rights, your unique present and future state of affairs will dictate how you should best plan your estate.

In general, the main advantages of having a living trust instead of just a simple will are as follows:

1. Minimize Probate - If properly funded, probate can be minimized, if not entirely avoided, by using a living trust.

2. Tax Planning - There are limits on the exemptions one can claim from your estate having to pay Federal Estate Taxes.* For married couples, proper use of certain clauses in your living trusts can maximize the benefits of these exemptions, thereby saving more money for your heirs.*For 2007 & 2008, the annual Federal Estate Tax Exemption is $2,000,000.00 per person. It is $3,500,000.00 per person for 2009. The exemption is unlimited for 2010. However, unless Congress adopts new limits, the Federal Estate Tax Exemption in 2011 will only be $1,000,000.00 per person.)

3. Protect Assets - While the creator(s) of a living trust generally will not be able to protect their assets from their own creditors simply by placing their assets into a living trust, with proper drafting, you can protect the assets included in the living trust from the creditors of your heirs.

4. Special Circumstances - One of the better features of living trusts are their flexibility. You can prepare a living trust to accommodate all types of unique situations, such as the special needs of an heir, desire to regulate the manner in which distributions are made to an heir, etc. . .

Lastly, in order to take full advantage of the benefits of a living trust, it is vitally important to make sure that the trust is properly funded. This ensures that all relevant assets are included in the trust. If not done properly, a situation can arise where one's heirs may have to probate an estate even though there is a living trust, which completely circumvents one of the main advantages of having a living trust.

Friday, March 30, 2012

A limited non-durable power of attorney for children is used when specific care is needed. The person that is appointed as the agent will only be allowed specific functions when it comes to the care of the children. With the a limited agent, the agent becomes ineffective if you ever become disabled or incompetent in any way. The powers are immediately terminated once you are no longer able to make decisions. The agent granting is only for the length of time that you determine. It is only valid during that time frame and immediately ends once the date is reached. It can also be created to only be for a specific function or action that needs to be completed with minor children and once the action or function is complete, than the power is revoked as well. The power can of course also be revoked at any time by you.

When appointing this type of attorney for child care, you are allowing them to complete any action you yourself could legally complete for a minor child. The powers can again be broad or specific. A limited non-durable power of attorney for a minor child authorizes the appointed attorney to have temporary custody as well in some instances. This is for a minor child that is not married and when the minor child will be living with the appointed agent. The agent is then able to make decisions for the child. This can be necessary when a parent needs to travel or go overseas and needs another person to take care of their child while they are away. This type of consent typically includes medical decisions that need to be made in the event of an emergency.

The powers that are granted can be, but are not limited to:

Consenting to medical treatment.

Consenting to emergency medical treatment.

Allowing hospitalization.

Allowing surgeries to be performed when medically necessary.

Safety of the child.

Ensuring the continuing education of the child.

Enrolling a child in school.

Enrolling a child in sports and other after school activities.

Document signing when connected to medical treatment and medical care.

Allowing for discipline and supervision of the child.

Handling disputes and arbitration when necessary with the child.

Acting as the guardian of the child.

Handling other parental responsibilities, such as picking and dropping off at school, handling travel arrangements, appointments and other necessary functions.

Typically when granting power of attorney for a minor child, the form must be notarized or signed by two other witness. However, each state may differ, so it is best to check to make sure what the state requirements are for a valid granting of power for a minor child.

Thursday, March 29, 2012

One of the most common ways to transfer property from one family member to another is with the quitclaim deed commonly referred to by the misnomer "quick claim deed". The quitclaim deed is usually the best way to "add" a family member or spouse to the title of a property.

A Quitclaim Deed is a deed that transfers to a Grantee whatever claim or interest in the property that may be held by the Grantor. The Grantor might be a legal owner or the Grantor might never have formally been identified on a deed describing the property.

The Grantor of the deed makes no warranties regarding the quality of their interest in the property or even if they have any interest at all. Specifically, in a Quit Claim deed, no warranty is provided regarding liens, encumbrances or other claims against the property.

A Quitclaim Deed is most often used in gift transactions, transfers to as spouse, or transfers to an entity owned by the Grantor. But they are also very common as part of a divorce settlement.

If a married person holds title to a property as sole owner or perhaps he or she acquired the property before marriage, the spouse not in title might be asked to sign a quitclaim deed when the property is sold to a third party, just to make sure the spouse who was not on the deed does not later come back and lay claim to the property.

To "add" a person to a deed, may seem a little more tricky, but is really quite simple.

Example: Jill wants to add her husband Jack to the deed of the property currently owned solely by Jill. If Jill grants a Quitclaim deed to Jack, Jill is left with nothing. However, and this is the part that seems a little odd, If Jill gives a quitclaim deed to Jack and Jill, she has effectively added Jack to the title. In the transfer Jill will be both a Grantor (the person giving property) and the Grantee (the person receiving property). All that is left is to make sure the deed is properly signed, witnessed, and recorded.

Wednesday, March 28, 2012

Changing your last name is a very common thing for a bride to do after marriage. It can also be a great way to lose an unwanted or unappealing family name. It really doesn't matter when or why you want to change your name, it is your right to do so. Legally changing your name yourself is also very inexpensive since a lawyer is not required.

Most women simply follow tradition and take their husband's last name and give up their last name they were born with. Many times you'll see women keeping their family name but as their middle name. Some will even use the two names as one with a hyphen or space in between them. These options are all available to you for your post wedding name change. In very rare cases the husband will even take the bride's last name.

There are also couples that just create an entirely new last name. As long as your not trying to change your name for fraudulent purposes then you can pretty much change your name to anything you want.

It's a good idea to change your name on your documents and so forth after your honeymoon. This is because it can take awhile to change your name on your passport and other documents. If you were to travel somewhere with one name and try to come back on the same passport but this time they check your license and it has your new name then you could have trouble coming back to the U.S. or worse detained at the airport and charged.

Just changing your name on your documents though is not a legal name change. You will need to file a legal name change for your state. Since every state is different, I cannot provide you with the exact instructions for your state. To make everything easy I suggest you find a legal name change form with instructions. These are often called do-it-yourself name change forms. Most states will require you to follow a certain procedure to make your name change legal. Your state's procedure will most likely include things like having two witnesses sign the document and having it notarized before it is legally valid.

The most important documents to change your name on first are documents you use for identification like your drivers license and social security card. Having identification with your new name will make changing your name on other important documents much easier. Make a checklist of documents you will need to change your name on and people you should notify. Do not forget to include things like credit cards, vehicle registration, your employer, retirement plans, the U.S. post office, utility companies, legal contracts, your last will, and your insurance policies. Most of these records can be changed simply by mail or with a quick phone call. Just to make everything easy, have copies of your marriage license ready to mail out. Another good idea is to request a receipt to be returned to you, that way you'll have an idea of when your name change has taken effect.

Tuesday, March 27, 2012

A warranty deed is usually required in case you sell some of your properties. This document provides your potential buyers some sense of assurance on the properties that they plan to buy since a warranty deed is a legally binding evidence about your ownership claim of the property which you are subjecting for sale. But, what if you are are faced with a scenario that you do not have with you a warranty deed. Is there still a chance to sell the properties to buyers?

Fortunately, yes. You can still deal your properties even in the absence of a warranty deed. This can be substituted instead by what is called a quit claim deed. Basically, a quit claim deed is a legally binding instrument which guarantees that you are allowed to sell the properties in accordance to the existing laws. This also gives prospective clients that they are dealing with a legal seller.

Quit claim deeds are often used in circumstances like owning a property through marriage or inheritance. This legal document contains the name of the seller and buyer, the worth of the property as duly decided upon by both parties, the location, and the legal annotation on the rights over the properties. This legal document should bear a notarial seal and the necessary signature, which are must requirements. Of course, affixed signatures for both the seller and buyer should be present.

The process today of dealing properties is a bit easier than before. Decades ago, disposing properties without the required warranty deed used to entail a long period of time. With the use of quit claim deed, you have higher chances of disposing your properties in exchange of the amount favorable to you and the seller.

Before selling your properties, make a point to comply with all the necessary requirements. Meanwhile, for the seller, do not forget to ask for legal documents that would serve as a guarantee of the legitimacy of the transaction.

Monday, March 26, 2012

After an accident or health catastrophe, an individual may be left with the care of a loved one and not quite know what to do with oneself regarding medical decisions, financial decisions, and a host of other life-impacting decisions for the person. Other individuals may realize that their parents are getting older and have to come to terms with an unfortunate truth: older adults frequently have periods toward the end of law when they are unable to make decisions for themselves. While it is most common among older people, younger individuals involved in accidents may also have this problem. If the individual has an advance health care directive or durable power of attorney, there will be a person designated to care for the individual. The same cannot be true for individuals who lack these important documents.

If a person who has become unable to care for him or herself lacks the documents that place control of their life in the hands of another, a conservatorship, or adult guardianship, may come in handy. This situation is not easy to arrange and typically involves a lawyer. Once the documents are drawn up, a judge generally has to approve the plan. Despite all of the inconveniences, an adult guardianship can solve the extremely large problem of who is in charge of making the major decisions that involve an injured individual when he or she is unable to do so on his or her own.

Conservatorship and adult guardianship are, most of the time, essentially the same thing. Different states use different terms but they signify the same thing. These two terms indicate that an adult is unable to make decisions for him or herself and so a judge has appointed someone, called the "conservator," to make the important decisions about life for him or her. Any of the decisions made by the conservator have the legal backing of the court. The court can appoint a conservator to oversee finances, medical care, personal care, or a combination of all.

In order for it to be appropriate for a court to appoint a guardian, there must be two things in place. The first one is that the person must be physically or mentally incapable of making important decisions for him or herself. The second condition is that the individual in question does not have the legal documents in place to cover such a situation.

Individuals who are not elderly who have become disabled to the point of requiring a conservator may be eligible for disability, if it can be shown that the individual cannot hold a job due to some injury or impairment. This can become a major source of income for the individual and lessen the financial burdens on the family.

Sunday, March 25, 2012

While most of us may not realize it the simple promissory note that is in use today is not that much different from the ones that were used as far back as the 10th century BC. This note is a very simple yet legally binding contract between the lender and the person who is borrowing the money. It is designed to help both parties avoid making what could be costly mistakes that could easily result in a court battle and ill feelings between both parties. The law does not require this to be an overly complicated form and in fact the simpler the note is the better.

In the early days a promissory note only contained three things, the name of the lender, the name of the borrower and how much money had been loaned. Those in use today require little more and may only add such information as the contact information for both parties, the interest rate being applied to the loan and the final due date for repayment of the loan. This information is used to ensure that there can be no misunderstandings by either party involved in the loan.

There are typically two forms of this type of loan agreement; they are the secured note and the unsecured note. With a secured note you will be required to provide some form of collateral in the form of real property before the lender will complete the loan. These notes are generally used when a person buys a home or a car that has to be financed and the property they are buying is what gets used as their collateral. This way if they default on the loan the lender has something that can be sold in an attempt to recoup some of their losses.

With an unsecured note the loan is usually much smaller and often between two friends or family members. The problem with using this type of simple promissory note is that if the borrower defaults on the loan, the lender may have no other recourse than a court of law to attempt to recover his money. Since the borrower has already defaulted on the loan there is a relatively large possibility that the lender who takes civil action may not just end up out the value of the loan, but his expenses for attempting to collect the debt. A promissory note is only a legally binding contract if both parties have signed the document and should always be used when lending or borrowing money.

Saturday, March 24, 2012

A Lasting Power of Attorney is a legal document, which allows a person to appoint someone they trust as an 'attorney' to make decisions on their behalf. These decisions can be about their welfare, their money or their property. Attorneys can make decisions for people when they no longer wish to do so, or when they lack the mental capacity to do so. A Lasting Power of Attorney cannot be used until it is registered with the Office of the Public Guardian.

Who decides what 'lacking mental capacity' means?

Someone can lack mental capacity if they have an injury, disorder or condition that affects the way their mind works. This could mean they have difficulty making decisions all of the time or that it might take them a long time to make a decision. The assessment of someone's mental capacity should only be made at the time a particular decision needs to be made.

Any assessment should start with the assumption that the person has the capacity to make the decision in question. It should never be based simply on their age or appearance, nor on an assumption about their condition or any aspect of their behaviour. A solicitor can decide if someone is capable of making decisions or understanding things such as a will or a Lasting Power of Attorney. If in doubt, they can get an opinion from a doctor or another appropriate professional. The Court of Protection has power to decide whether someone has mental capacity or not if there is a disagreement.

Determining who is capable of making a decision

The Mental Capacity Act Code of Practice, 2005, gives detailed guidance on how to assess someone's ability to make decisions, but generally the sort of things that should be taken into consideration when assessing the ability to make decisions are:

if the person understands what decision they need to make and why they need to make it

if the person understands what might happen if they do or do not make this decision

if the person can understand and weigh up the information relevant to this decision

if the person can communicate their decision (by talking, using sign language or any other means)

if the person can communicate with help from a professional (such as a speech and language therapist)

if there is a need for a more thorough assessment (perhaps by involving a doctor or other professional expert)

It's vitally important to make the distinction that just because a person makes a decision you don't agree with, doesn't mean they are therefore incapable of making a decision. If in any doubt about this matter, it is always best to consult a qualified solicitor for an informed opinion.

Friday, March 23, 2012

A common comment that I hear is something like this: "But I don't have to worry about probate, I have my own will."

That's a common misconception. But by their very nature a will has no legal effect until the death of the person who's will it is. And for that reason, to give the will it's authority, or to carry out the terms of a will, it must be supervised by a Court of Law. That means probate. The probate court grants the authority for the terms of a will to be complied with.

Most people, when they learn about probate, and what it is, want to avoid it in their own case. Probate ties up the estate for a period of about 1 to 2 years --- or eleven years in Howard Hughes' case.
Probate costs an average of 5 to 10% of the value of the estate assets in court costs and attorney fees. So if you have a modest $200,000 estate (remember you have to include life insurance as well as all your real and personal property), probate could cost from $10,000 to$20,000. That's a hefty fee.

Court records, by their very nature, are public records. Settlement of an estate can lose all the privacy for the heirs. Anyone can go down to the courthouse and request your probate records. There they can find the names and addresses of all you heirs and everything that was distributed. I don't think you want that known to the world for safety sake.

Their are 3 ways to keep an estate out of the probate court upon a person's death.

One, have a will like this: "Being of sound mind, I have spent all my money while I was still living." The danger of that is to run out of money before you run out of life.

The second way is to have an estate that is of less value that your resident State's probate exemption amount. This is different in every State. It ranges between $5,000 and $100,000. So check your State laws to see how rich you have to be to have your estate go through probate.

The third alternative is to have nothing in your name at the time of death. The way to do this is to hold assets in joint names with someone else (which creates another problem). Or you can have your assets titled in a revocable living trust. This is becoming by far the most popular method to avoid probate.

Revocable Living Trusts are a little more costly than Wills to set up, but the fee to administer them is negligible --- sometimes even zero. The time it takes to settle a trust can be a little as a few weeks versus the year or two for a will to go through the probate process.

So you can easily see why Living Trusts are the preferred choice over a Will.

Thursday, March 22, 2012

A General Durable Power Of Attorney is an estate planning document that is meant to be in place for if you become incapacitated or disabled and are no longer able to speak for yourself or carry on your financial affairs. The durable nature of the power of the attorney comes into play when a trusted person that you name in the document steps into place for you to manage your assets and handle your affairs for you until you recover or for the rest of your life. What happens if you do not have this important document in place and you become disabled or incapacitated and are no longer able to act on your own behalf?

If you become incapacitated in most states without a General Durable Power Of Attorney in place for yourself then the Probate Court in your county steps in and decides who would be the person to handle your affairs that would have named in your power of attorney if would have properly made one. The probate court in your county of residence most likely must appoint both a Guardian and Conservator for you. A Guardian is appointed to look after your health and well-being and make decisions that are in your best interest of your person. A Conservator is appointed by the Probate Court to look after your money and make sure that you are not being taken advantage of financially. The conservator must file strict accounting reports with the Probate Court and will most likely have to post a bond in case any money is mishandled. This process can be extremely costly and drain your assets before you get to enjoy them again after you regain capacity or pass them on to your loved ones.

A General Durable Power Of Attorney eliminates the need to appoint a Guardian and Conservator as a trusted person is named and given the powers to carry out your needs if you become incapacitated. This document allows you to be in control of your own affairs through anther instead of the choice being out of your hands and made by a government agency at a much greater cost of time and money. While it is not pleasant to think of yourself being incapacitated at any point in your life, it is a reality that most people do not die right away and go through some period of disability. Protect yourself by planning ahead.

Wednesday, March 21, 2012

Alternate Living Trust Beneficiaries: Why Every Will and Trust Needs Them To Protect Property and Estate

Alternate beneficiaries - this is the person and/or organization you allot a gift to through the direct beneficiary, should the direct beneficiary pass away before you or does not live beyond for a certain period of time, usually between 30 to 45 days. This is what's known as survivorship requirement. For every direct beneficiary you have, you can name one or several alternate beneficiaries. It is common for a spouse to name one another, then their children as the alternate living trust beneficiaries. Of course, other alternate beneficiary plans are a bit more complicated.

Alternate Beneficiaries: Who Should You Name In Your Will/Living Trust

When you're preparing either your living trust or will, you might be thinking about whether or not you need an alternate beneficiary. In most traditional estate planning, the answer to your thought is yes. It's usually in your best interest to have them although they're not necessary for every situation.

If you have a reasonable assumption that your main beneficiary will die before you then it would be in your best interest to name a person as the alternate beneficiary. Now, you can always amend the trust or will to name a new main beneficiary to ensure that your property will go to someone else. However, having alternates in the trust or will saves you time and work. This also reduces the chance that you don't get the time or forget to amend the trust or will. With alternate living trust beneficiaries in place, you won't have to worry about this.

Why do some people prefer not to put in alternate beneficiaries? That's because they must consider the possibility that their primary beneficiary will pass away before them.

The majority of folks won't put all the eggs they have in one basket. The question becomes how far down the road should they place alternate beneficiaries? Should you make a plan that states what to do with the estate if both the primary and alternate living trust beneficiaries pass away before you do? What will happen to your estate if your kids and grandkids pass away before you do?

Tuesday, March 20, 2012

Many people facing the prospect of divorce are surprised to learn that pension benefits accrued during the course of a marriage are considered marital property (or, in some states such as California, community property) that is divided between the spouses upon divorce. A pension plan falls under the category of retirement plans known as defined benefit plans. These types of retirement plans generally provide that upon retirement, the participant (employee) is entitled to a monthly annuity that is payable over his or her lifetime.

Because of certain provisions contained a Federal law known as the Employment Retirement Security Act, a divorce judgment or matrimonial settlement agreement, standing alone, is not a legally sufficient mechanism for dividing a pension plan. It is essential that a further order, known as a qualified domestic relations order (QDRO) be entered by the court and approved by the pension plan administrator.

In situations where the participant spouse is not yet retired, the QDRO form can utilize two different methods for dividing pension benefits. These include the "shared interest approach" and "separate interest approach."

If a QDRO form uses the Shared Interest Approach, payments to the Alternate Payee cannot begin until the Participant chooses to retire and begins to receive a retirement allowance. Furthermore, payments to the Alternate Payee must end upon the Participant's death unless the Alternate Payee was designated in the QDRO as the surviving spouse of the Participant for the purpose of electing a Qualified Joint and Survivor Annuity and such election was elected by the Participant at the time of the Participant's retirement.

If a QDRO form applies the Separate Interest Approach, a "separate interest" is carved out for the Alternate Payee and adjusted to his or her actuarial life expectancy. In addition, the Alternate Payee controls the timing and manner of his or her receipt of the benefit payments. The Alternate Payee can commence receiving benefits at the Participant's earliest retirement date, rather than wait for the Participant to begin to receive a retirement allowance.

In most instances, it is highly beneficial for the non-participant spouse that the QDRO form utilize a separate interest approach. Sample QDRO forms are available for download. Upon completion of a proposed QDRO form, the document must be submitted to the pension plan administrator for approval, and, thereafter, to the divorce court adjudicating the matter.

Monday, March 19, 2012

You may think that an adequate estate plan consists of a will or living trust coupled with a durable power of attorney and a healthcare power of attorney and living will. There is now an additional estate planning document that you may need to have for a more complete plan. This additional document is what is known as a HIPAA Authorization and could make a big difference in the quality of care that you receive.

All of these forms may sound confusing in their name and actual purpose, but HIPPA is an abbreviation for an act of Congress concerning health care records. HIPAA stands for Health Insurance Portability And Accountability Act. HIPAA was enacted by Congress to increase medical privacy for individuals. there was a concern that medical records were too easy to access and could fall into the hands of the wrong individuals. Once in the hands of these individuals the information could be used for wrongdoing to exploit the patients. Congress made the act to enhance the privacy of medical patients and severely restrict who could access a patients medical records. Every medical provider, whether it be a hospital, doctors office, or clinic must have written authorization to release medical records to anybody that is not the patient including a spouse or other family members.

The U.S. Department of Health and Human Services has recently imposed multimillion dollar penalties on medical providers that have violated the act. Healthcare providers have clamped down on who can access records to prevent liability and future payouts in lawsuits. So now it is more important than ever to plan for the act as part of an estate plan. This would come into play if you were to become incapacitated and unable to speak for yourself. An adequate estate plan must have a person in place to make medical decisions for you. The person you name must be able to access all of your medical records to be able to make the best health decisions for you. Most states have a Healthcare Power of Attorney form that includes a HIPAA release provision that allows the appointed agent access to medical records. This is so the agent will have access to all information that might be necessary to make a healthcare decision for a principal that is no longer able to speak for themselves. It also may be necessary to fill out a separate HIPAA release form for additional family members to have access to medical records that may not be a named agent under the Healthcare Power of Attorney. Healthcare providers can be more accepting to releasing medical records if they see a HIPPA release.

Sunday, March 18, 2012

Generally children are under the legal care of their parents until they turn 18 years old. In special circumstances a child may need to gain legal control of their lives before this age. Reasons could include a desire to marry before 18 without the consent of parents, entering the military or financial reasons. Gaining legal independence from parents before turning 18 is known as emancipation.

Courts are generally hesitant about granting emancipation, but teenagers with strong reasons may have their requests granted. The Court will require that these teens prove that being emancipated in their best interests before entering an order recognizing them as independent adults.

Every case is different and the Judge should consider the special circumstances of each case. A few possible situations that could convince a Judge to grant an emancipation include:

Financial independence: this is often seen with child stars or children who inherit large amounts of money but don't trust their parents to manage it for them for some reason, but is not limited to the very rich. It is possible for a minor to inherit a sum of money or property but not have the ability to fully claim those funds due to their minority. A court order of emancipation allows them to act as an adult and claim their inheritance.

Marriage: if the child has married prior to becoming an adult legally they can request emancipation. Most States require that the minor's parents consent to the marriage and having done so they have little say in the emancipation of the child as it is a little difficult to say that the minor was adult enough to marry but is not adult enough to be independent.

Parental abandonment: if the parents are nowhere to be found and the child has been taking care of themselves they can request that the Court recognize their independence.

The Judge has the discretion to grant emancipation or not and there is no real appeals process. The Judge should use the child's best interest as the standard to determine whether to grant the request or not.

First the teen must qualify for emancipation by meeting the age requirement. Every State has a certain age that must be reached before the Court can consider emancipation. In many States the minimum age is 16 years old. If the teen meets the age requirement they must file a request for emancipation with the Court. This is a rather complicated document that should be prepared by an attorney. After the request for emancipation is filed a hearing will be set and the judge will hear from the teen and potentially their parents and then reach a decision.

Saturday, March 17, 2012

A Limited Liability Company (LLC) may be every businessman's dream. By forming an LLC, industries ranging from real-estate to construction will reap numerous benefits and provide more opportunities for the company and its clients.

For those who do not know what an LLC is, here is a brief description. LLC is a business structure that allows your company to enjoy legal responsibility like those of a corporation while avoiding annual reports, share distributions, bylaws, and other necessities when setting up a company.

Forming an LLC is helpful especially to fledgling businesses. It merges control and tax advantages of a partnership while having the advantage of limited accountability. LLC members are also protected from liability for business debts or claims. An LLC is more flexible than a corporation because owners can be individuals, trusts, partnerships, corporations and non-resident aliens. Plus maintenance is easy; LLC has less formalities and easier than running a corporation.

Differences of forming an LLC vs. Incorporation
Corporations are owned via share of ownership or stocks that are distributed to stockholders. An LLC, like partnerships, is simply owned by the members or the managers of the company.
Unlike an LLC, corporations require holding annual meetings and keeping written minutes. There is less paperwork in LLC because they do not have those requirements.
A corporation must pay taxes for their profits at the corporate tax rate. An LLC on the other hand is a "pass-through" tax entity. Meaning the profits or losses produced by the business will appear on the personal income tax return of the owners. Double taxation of paying corporate tax and personal income tax are therefore avoided.
What to expect after filing an LLC

Once you have decided to file for an LLC, you will receive two articles with a CD explaining the documents. The two articles are the Articles of Organization and the operating agreement. They will come along with the corporate or LLC kit.

The Articles of Organization formalizes your existence under state law. Once you have filed this, you have a legitimate business up and running.

This document spells out the name, purpose, incorporators, amount and types of stock which may be issued and any other special characteristics of the business entity. The Operating Agreement on the other hand, contains the written rules for conduct of the LLC. These include meetings, elections of a board of directors and officers, notices, types and duties of officers, and other standard protocol.

You will also have a registered agent who can acknowledge official documents on your behalf. Examples of the documents you'll be receiving are tax notices, annual reports and legal-process documents such as summons, etc.

The last steps include filing for an Article of Amendment to reflect the changing of your company from a corporation to an LLC. You also need to file an Initial or Annual Report. Business filing experts can help process necessary changes in your business.

Article Source: http://EzineArticles.com/6775161

By The People in Fairfield can help you with the paperwork when forming an llc. We try to make each process as simple and fast as possible, as well as affordable. Our fees are a fraction of the cost that you would pay at an attorney’s office. Please call or stop in for more information. There is no cost or obligation to stop in and have an initial consultation with us.

Friday, March 16, 2012

Some business owners do not fully understand how incorporation works. This process is not a requirement for each business but it may help you in the long run. Choosing to incorporate can give a business owner several benefits.

You may look at a corporation as a separate person with limited rights and privileges. Through incorporation, you split yourself from your business, giving it a life of its own. Your business becomes independent from shareholders and its employees. No matter what happens to the shareholders, the business remains in operation until the directors decide on its dissolution.

For sole proprietorship, the owner is one with his business. Whatever happens to the business, the effect will strike the owner as well. If the owner has personal debt, creditors may pursue assets from the business regardless of its relation to the case. When you incorporate, all of your personal finances are different from the business. If you experience a personal financial crisis, you can protect your business assets through incorporation. This process may also resolve other cases such as the death of the owner. Normally, when the owner or partner dies, this automatically dissolves the business.

Another advantage of this process is the free transferability of interest from one person to another. In partnerships, one cannot simply transfer his or her interest to another without consent. Perhaps, the greatest benefit of this process is its limited liability against shareholders. When the company gets into debt, a creditor may attack the personal assets of the shareholders. Since the business and the owner are two separate entities, the creditor cannot pursue your properties to satisfy the debt. Because of this, the corporation can make decisions without endangering its shareholder's assets.

A downside of incorporating is the method of taxation. Since there are two separate entities, you may run the risk of double taxation. Your corporation needs to give corporate tax. When the corporation distributes the remaining income among its shareholders, it is taxed once more based on the individual's income tax bracket. You can get around this issue by forming an LLC.

An LLC or Limited Liability Company can secure your assets through liability protection. It can deduct specific expenses, reduce audit risk, and establish credibility with your customers. In essence, an LLC is a type of business entity offering better advantages than other structures.

Incorporation requires a lot of paperwork. You need to find a reliable company offering services to make this process faster and easier. You may need to undergo different registration processes to protect the legitimacy of your business. Trademarks are important to set up the identity of your business. You have to register your brand name and logo with the help of business filing experts. When you have copyrights for your business, you may sue anyone who tries to use your brand without consent. A domain name for your website is also important to secure. This is so your clients may easily find you on the Internet. It can be difficult to go through these things unless you have an expert to work on these documents.

Thursday, March 15, 2012

California conservatorships can be a nightmare, particularly when the "conservatee" is capable of handling financial and healthcare decisions - as long as they have a little assistance. The real tragedy is that courts, lawyers and family members don't always investigate whether less restrictive alternatives are available.

A conservatorship can be terminated if sufficient evidence is presented to the court to show that less restrictive alternatives are available that will continue to protect the conservatee's best interests.

A conservatorship takes on a life of its own. The court appoints a "conservator" and grants them the authority to handle all finances, determine where the conservatee will live, and also makes healthcare decisions. It's very costly: filing fees, attorney fees, probate investigator fees, court-appointed attorney fees, conservator fees, etc.

Sometimes a conservatorship is necessary. An elder may be suffering from dementia and hasn't paid her bills on time, attended doctor appointments or purchased and cooked proper food. If no family member or friend is available to assist, then a conservatorship may be the right option to provide the care that's required.

But often, there are family members or friends available to help. If the elder is mentally capable of signing powers of attorney for financial and healthcare decisions, and can name a trustworthy person to act as "agent", then that agent would possess all of the legal authority needed to care for the elder. No court involvement would be required.

If necessary, a "professional fiduciary" can be named as the agent under a financial power of attorney. The agent can obtain a "bond" from a surety company. If the agent stole money from the elder's estate, then the surety company would reimburse the elder for any money wrongfully taken.

Powers of attorney are often execllent alternatives to the establishment of a conservatorship. Of course, the named agent must be entirely trustworthy. The authority granted to the agent is broad and sweeping. Placed into the hands of an unscrupulous agent, a financial power of attorney can become a license to steal.

But just because an elder has diminished mental capacity, that doesn't mean that a conservatorship is always necessary. Other viable options often exist and should be explored. A conservatorship should be the option of last resort.

To terminate a conservatorship, the court must be convinced that the conservatee's financial and physical well-being will be maintained at the highest possible level. Often the conservatee has diminished mental capacity but is still capable of understanding the meaning of powers of attorney for financial and healthcare decisions and is able to name a trustworthy person to be appointed as agent. T

Terminating a conservatorship will generally require the assistance of a psychologist or psychiatrist to inform the court of the conservatee's mental capacity and ability to at least understand the basic purposes of financial and healthcare powers of attorney. Often, the court can also approve the creation of a simple trust which names a bonded trustee with authority to handle all financial matters.

In conservatorship cases, one should search for other less restrictive alternatives. When they are available, then sufficient evidence can be presented to the court to prove that all of the conservatee's needs can be met without a conservatorship and that it should therefore be terminated.

Wednesday, March 14, 2012

When you hear "uncontested divorce", also known as no fault divorce in California, you probably think of a couple who amicably and in a friendly manner decide to call it quits. While this is surely the case in some situations, choosing to go the uncontested divorce route may be a financial decision rather than an emotional one. Just like any divorce, there is the chance that an uncontested will see unpleasantness and bitterness to some degree.

So why would you choose this path if you are unhappy with your former partner? Well, for one an uncontested divorce is much cheaper than a contested divorce in most cases. The couple could even file for divorce without the assistance of lawyers, although at the very least speaking with an attorney is often helpful and important in protecting one's rights.

What's more, it allows the couple to end their marriage quickly and with as little animosity as possible, even if the former couple isn't walking away from the marriage with the best of feelings towards one another. You probably will not agree on every single aspect of the divorce, but after a little negotiating, compromising and talking through the issues, couples are often able to reach an agreement without fighting each other in court.

Getting back to the money-saving benefit of an uncontested divorce, the extra cash that may otherwise go to a divorce attorney can be used to rebuild your life. You won't have a partner with whom you can split your expenses, including rent, car payments, utilities, etc., and if you have kids you'll be able to pamper them a little bit as they deal with the divorce.

There are some cases in which a no fault divorce may not be right. If abuse exists in the relationship, negotiating may be difficult for the victim of abuse, as intimidation and possibly fear will put create an uneven playing field. If either you or your spouse decides that you want to walk away with most of your assets, or if you are not on speaking terms with your spouse, an uncontested divorce may not be the best of choices.

In the end, though, many choose an uncontested divorce because of the money, headaches and hassle that it saves them.

Tuesday, March 13, 2012

Registering a business or company name requires checking with state statutes and county ordinances for filing a fictitious name. File a fictitious name by putting an ad in a local newspaper or obtaining a form from the county clerk's office with tips from a lawyer in this free video on business law.

By The People in Fairfield can help you with the paperwork when filing for a fictitious business name. We try to make each process as simple and fast as possible, as well as affordable. Our fees are a fraction of the cost that you would pay at an attorney’s office. Please call or stop in for more information. There is no cost or obligation to stop in and have an initial consultation with us.

Monday, March 12, 2012

Have you ever thought of hyphenating your last name? Watch this video and after you are done laughing, think twice!

Thinking about changing your name? Need help with the paperwork? By The People is a Document Preparation Service located in Fairfield, California available to help you represent yourself in many uncontested legal matters.

Sunday, March 11, 2012

Uncertain what is the difference between a living trust and a will. Living trusts and wills are actually both beneficial estate planning documentation, and although both have got value, they have got their very own differences.

Here's a super easy breakdown tackle the living trust and will query, to understand the distinctions between these two documents and also how they both can be of use make your own estate plan.

What is In a Will?

What precisely does a will do? A will is actually a document that will let you distribute your property to those beneficiaries of your choosing.

You are also able to appoint an executor who is responsible for managing your property after your own death and making certain that your beneficiaries get their designated assets.

A will normally gives parents the chance to appoint a guardian who will be in charge of caring for their children if they are at any time unable to. Fact: A will is made during a person's lifespan but is only operative after death.

What exactly is In a Trust?

This particular document is different from a will for the reason that it can be effective during a person's lifespan.

This valuable document is able to easily be modified during your lifetime. It is actually similar in that it enables you to manage your assets.

You are able to choose how your assets in the living trust will be distributed following your death. You will pick beneficiaries who will get the assets and a successor trustee who will assist to manage and distribute your own belongings.

In case you become incapacitated, your successor trustee is able to manage the assets and help you with your own financial affairs. This is a big advantage for creating this legal entity.

What Do You Need?

It is actually beneficial to set up a will since you will be able to choose how your assets will be dispersed after your death and you can also make certain that your children are always cared for. This is something which is extremely beneficial.

It is beneficial to create a living trust in case you are looking for a way to manage your own asset distribution. If you want somebody to be able to access these particular assets during any disability or incapacity, you should create a living trust rather than a will.

Both of these documents can be extremely beneficial. It is important to work with an attorney while creating any estate planning. Although it is possible to do your own private planning, it is easy to make really expensive mistakes.

Saturday, March 10, 2012

Coming up with an estate planning checklist can be a jarring activity. Basically, a person who devises an estate plan is acknowledging he or she will die. Of course, we all know that death is one of life's few certainties. But it's often sobering to see an estate plan in black and white.

But the reality that we're only here for a finite amount of time is what makes estate planning so important. When done correctly, the entire process - from declaring a durable power of attorney to drawing up wills to donating money tax-free to family members, friends and charities and every activity in between - will make things much easier for a person's survivors in the days, months and years following his or her death.

Here are some estate planning basics to follow:

Find a durable power of attorney. This may be even a more essential step than writing a will. A durable power of attorney is the person who has the legal right to act on behalf of someone who is medically incapacitated. Establishing a durable power of attorney provides the estate planner peace of mind knowing his or her affairs will be in the hands of a trusted family member or confidant. It is especially important for estate planners to do this well ahead of time, because should someone suffer an injury or illness that renders him or her unable to handle his or her affairs, a court will appoint a guardian or conservator at the family's expense.

Write a will. A will ensures the deceased can declare where his or her "probate property" - i.e. the property the deceased owns at the time of death, such as real estate, automobiles and some bank accounts - will go following his or her death. A will can also help the wealthy minimize the estate taxes their survivors will have to pay. Those who die without a will in place ("intestate") will have their estate distributed during the probate process, which can be costly and time-consuming for the survivors.

In 2012, there is no estate tax assigned to estates valued at less than $5,120,000. However, the federal estate tax is 35 percent, so it behooves those who have this much property and are not leaving it all to a spouse to design an estate plan in which they make tax-free donations that can lessen the tax hit their descendants will take. An individual may donate as much as $13,000 to another person without having to report the gift via a gift tax return. And gifts made to charities are not taxed.

Estate planning is an imposing task from the very beginning and the locating of a durable power of attorney. But it is vital that it be done, and done correctly, so that a person has a say in how his or her estate is distributed upon death and to maximize the inheritance received by his or her survivors.

Friday, March 9, 2012

A deed is the document that transfers ownership of real property. It maintains the names of the person holding the legal title, and if any, persons before who held legal title and contains a description of the property included.

The requirements for deeds vary with the jurisdiction and the specific state and city stature must be followed to create a valid deed. Title is the right to hold an ownership interest in a property; the right is transferred through a deed.

What types of deeds are there?

o Quit Claim Deed - A Quit Claim deed transfers to the grantee any and all of the legal rights the grantor has in the parcel of real property. The Quit Claim deed makes no warranty about the extent of the grantor's interest in the parcel of real property. This deed has the least protection of all real estate deeds.

o Grant Deed - A Grant Deed transfers to the grantee all or part of the legal rights the grantor has in the parcel of real property. The grantor deed implies certain warranties; that the property has not been transferred to someone else and that the property is free from any liens placed on the property by the grantor.

o General Warranty Deed - A general warranty deed transfers to the grantee all of the legal rights the grantor has in the parcel of real property and explicitly warrants that the grantor has good title to the parcel. This deed provides the most protection of the real estate deeds.

o Special Warranty Deed - A special warranty deed transfers to the grantee all of the legal rights the grantor has in the parcel of real property but warranties only what the deed specifically states is warranted. This deed type offers the buyer two guarantees from the seller. The first guarantee is that the seller received title and the second one guarantees that the seller did not encumber (anything that lowers the value, use or enjoyment) the property during the time the seller owned the property.

o Fiduciary Deed - A fiduciary deed is a deed used to transfer property when the grantor is a fiduciary such as a trustee, guardian, conservator, or executor acting in his official capacity. A fiduciary deed usually only warranties that the fiduciary is acting in his appointed capacity and within his allotted authority.

o Trust Deed - A trust deed is a written instrument that transfers property to a trustee to secure an obligation such as a promissory note or a mortgage. The trustee has the power to sell the real property in the case of a default on the obligation.

Do I need a deed to transfer property?

Property cannot be transferred without leaving something in writing. There are only a few examples where a deed may not be needed to transfer property. One may be in divorce where the court transfers the property out of both names into one of the spouse's names.

Does it matter which deed I use?

From the standpoint of asset protection, yes, from the standpoint of the law, you have choices. Deeds imply promises and with promises come liability.
A deed must be signed and notarized and you should keep your deed in a safe dry place. You or your attorney should record the deed in the Land Records Office in the county where the property is registered. All you have to do is take the original signed deed to the Land Records Office and the clerk will take the deed and stamp it, assign some numbers and make a copy, giving you back your original copy.

How is a trust deed different?

A trust deed (also called a deed of trust) is not used to transfer property. It is a version of a mortgage and contains certain promissory obligations, commonly used in some states (California, for example). A trust deed transfers title to land to a "trustee" usually a trust or title company that holds the land as security for a loan. When the loan is fulfilled, title is transferred to the borrower. The trustee has no powers unless the borrower defaults on the loan, then the trustee can sell the property and pay the lender without going to court.

Thursday, March 8, 2012

A warranty deed is usually required in case you sell some of your properties. This document provides your potential buyers some sense of assurance on the properties that they plan to buy since a warranty deed is a legally binding evidence about your ownership claim of the property which you are subjecting for sale. But, what if you are are faced with a scenario that you do not have with you a warranty deed. Is there still a chance to sell the properties to buyers?

Fortunately, yes. You can still deal your properties even in the absence of a warranty deed. This can be substituted instead by what is called a quit claim deed. Basically, a quit claim deed is a legally binding instrument which guarantees that you are allowed to sell the properties in accordance to the existing laws. This also gives prospective clients that they are dealing with a legal seller.

Quit claim deeds are often used in circumstances like owning a property through marriage or inheritance. This legal document contains the name of the seller and buyer, the worth of the property as duly decided upon by both parties, the location, and the legal annotation on the rights over the properties. This legal document should bear a notarial seal and the necessary signature, which are must requirements. Of course, affixed signatures for both the seller and buyer should be present.

The process today of dealing properties is a bit easier than before. Decades ago, disposing properties without the required warranty deed used to entail a long period of time. With the use of quit claim deed, you have higher chances of disposing your properties in exchange of the amount favorable to you and the seller.

Before selling your properties, make a point to comply with all the necessary requirements. Meanwhile, for the seller, do not forget to ask for legal documents that would serve as a guarantee of the legitimacy of the transaction.

Wednesday, March 7, 2012

Wills and probate are part of life and death. A last will is used to express the final wishes of a person who has died. This legal document outlines everything from funeral arrangements to which assets beneficiaries will inherit. Upon death, decedents' last will and testaments are filed through probate courts for validation and estate settlement.

The process of validating wills and probate typically extends between three and nine months. Probate allows time for estate administrators to locate missing heirs, contact creditors, obtain property appraisals, pay outstanding debts, and notify government agencies such as Medicare, Social Security or Veteran's Administration.

Factors which can prolong probate include case workload, contesting a will, or when decedents' do not execute a last will and testament. Intestate probate requires appointing an estate executor through court confirmation. Oftentimes, relatives will accept the position or retain the services of a lawyer or estate planner to settle the estate.

Contesting wills occurs when heirs believe they are rightfully entitled to inheritance assets which were not bequeathed to them. Heirs can also contest probated wills if they believe the deceased was not of sound mind or under the influence of another when they executed the document.

When wills are contested, the plaintiff absorbs legal fees unless the court rules in their favor. The decedent's estate must pay for legal counsel to object. If the court files in the plaintiff's favor, the estate must reimburse legal expenses. Contesting a will rarely accomplishes anything other than destroying family relationships and bankrupting the estate with litigation fees.

When family dysfunction exists, estate planning experts recommend hiring a probate lawyer to settle the estate. Although this can't prevent heirs from contesting a will, it oftentimes dissuades family members from proceeding in this manner.

Several options exist to avoid probate and the time-consuming and costly tasks that come with it. Many estate planners and probate attorneys provide complimentary sessions to discuss estate planning needs. These professionals can advise the best course of action to protect your family and assets.

Estate planning can be as simple as executing a last will and testament to developing irrevocable or revocable trusts. Multiple types of trusts exist and can be customized to suit individual needs. Trusts are managed by an appointed Trustee. Assets protected by trusts are usually exempt from inheritance taxation.

Small estates can utilize strategies to keep assets out of probate. Assign transfer on death beneficiaries to retirement and financial investment accounts and payable on death beneficiaries to banking and checking accounts. Real estate and automobiles can be jointly titled.

Personal probate representatives must submit forms to state Tax Assessor's office where the decedent resided. These forms are required to provide evidence no outstanding taxes are owed. As long as taxes are current, the Assessor will stamp the form and return to the institution where funds are held. Funds are then distributed to beneficiaries. If taxes are owed, the estate must make payment before distribution occurs.

The process of wills and probate can be a dreadful experience for loved ones; especially when family strife exists. Don't procrastinate about writing a will. The process is not difficult and in the end it is the best gift you can leave your loved ones.

Tuesday, March 6, 2012

Promissory notes are used as a document to record the details of the loan transactions between two or more individuals. The documentation promises that the money borrowed will be paid back to the lender within a specified time. These can be created at any time of the loan for ensuring the secure payments. Any kind of loans must be documented using this note, no matter whether the loan is a simple payment to be made for a family member or a friend. The note has legal validity by which the borrower is legally tied to keep the promise of payment as per the agreements in the note.

A well written document should contain the repayment terms, repayment amount and interest charged, maturity date and in case of non-payment what action should be taken. This documentation is considered as a good idea for record-keeping and payment of tax for loans taken between individuals. Once this document is signed by both the borrower and lender, the borrower is agreeing to the terms and conditions written in the document. The borrower should pay back the amount within the timescale showed in the note or else the lender can take legal action against the debtor. Based on the loan type, there are various types of promissory notes.

1. Commercial

This kind of note is documented according to the terms agreed by the lender and the debtor. In this case, the lender can legally take action against the debtor by acquiring the assets of the borrower as mentioned in the document, if the debtor cannot repay his/her loan. The lender can demand for immediate full payment after the maturity date and don't have to wait for long to obtain the money as installments from the person. Commercial promissory note includes strict conditions and some additional legal conditions.

2. Personal

In most of the cases, there will be only verbal agreement between family members or friends when you borrow money from them. But verbal agreement does not have legal approval in courts as you don't have any proof on the loan borrowed from you. A personal promissory note will provide good faith on the borrower and a security to the lender. You will get these notes from supply stores or can be downloaded. You should include the amount borrowed, terms and conditions for repayment, interest rate and what action to be taken if the money is not repaid.

3. Real Estate

This type of note will secure the loan borrowed by the debtor, but if she/he fails to do so, the lender has to pay the loan. So lender must include a mortgage for the loan given to the borrower which provides security to the lender when the borrower does not repay the loan.

4. Investment

These notes are used in businesses where the investors are the taking the risk of losing money. So the investment promissory note is making the borrower to repay the loan disregarding the success of the company. In this case, the note is functioning as a currency with legal value which can also be traded.

Monday, March 5, 2012

If you are having to go through the Probate Process with the court, let By The People help.

We may be able to assist you in representing yourself, by preparing the documents needed, filing the paperwork with the court, setting court dates, arranging for publication, and many other steps needed to complete the process.

Our fees are 1% of the value of the estate (up to $3,500.00). Any fees for the courts, probate referee, publication will be extra.